Andhra Pradesh High Court - Amravati

M/S Metso Outotec India Private ... vs The State Of Andhra Pradesh, on 8 May, 2023

       THE HON'BLE SMT JUSTICE V. SUJATHA

        WRIT PETITION Nos.20308 and 19889 of 2018.

COMMON ORDER:

      As the issue involved in both these cases is one and the

same, these writ petitions are decided by way of a common order.

(a). W.P. NO. 20308 of 2018:

     The present writ petition came to be filed under Article 226

of the Constitution of India seeking the following relief:

              "...to issue a Writ, order or direction more

     particularly a Writ of Mandamus declaring the

     action of Respondent No.5 of issuing impugned

challan dated 07/06/2018 bearing no.1693342

levying Life tax of Rs.13,80,600/- (Rupees

Thirteen lakh eighty thousand Six hundred

only) as illegal, arbitrary and violation of

principles of natural justice and as enshrined

and guaranteed under Article 19 (1) (g) and

Article 300 A of Constitution of India as no

notice is issued prior to challan and

consequently quash the impugned challan and

thereby the vehicle bearing number RJ05GB5482

may be permitted to travel bearing "Portable

Plant/ equipment" being mounted for

transporting to the customer site and pass..."

(b). W.P. NO. 19889 of 2018:

The present writ petition came to be filed under Article 226

of the Constitution of India seeking the following relief:

"...to issue a Writ, order or direction more

particularly a Writ of Mandamus declaring the

action of Respondent No.5 of issuing impugned

challan dated 07/06/2018 bearing no.1693341

levying Life tax of Rs.11,04,500/- (Rupees eleven

lakh four thousand five hundred only) as illegal,

arbitrary and violation of principles of natural

justice and as enshrined and guaranteed under

Article 19(1)(g) and Article 300 A of Constitution of

India as no notice is issued prior to challan and

consequently quash the impugned challan and

thereby the vehicle bearing number RJ05GB5482

may be permitted to travel bearing "Portable

Plant/ equipment" being mounted for transporting

to the customer site and pass..."

2. The petitioner is a private company limited

incorporated under the provisions of the Companies Act, 1956

and is a leading industrial company offering portable equipment

and services in the field of mining and construction and is into

the manufacturing of Portable Crushing Plant-Metso

NW220GPDTM is built around Nordbe rg ® GP220TM cone crusher

combined with the big 10 m2 (12 yd2) four-deck dual-slope

screen into the same advanced chassis bringing 20% more

crushing and screening performance compared with conventional

solutions in the same size class and innovations such as

hydraulically fine-adjustable support legs and screen lifting make

installation quick and easy. Metso NW220GPD is delivered with

IC50CTM unit automation and also readiness for CE marking and

wide voltage range 230/400-460V 50/60Hz.

3. While the matter being so, on 30.03.2018, a

purchase order was placed by one Ramalingam Construction

Company (P) Ltd for supply of 1 No. of 250T PH Three Stage and

1 No. of 250 TPH Two Stage Crushing and Screening NW Plants,

for which a Performa invoice was issued by the M/s. Ramalingam

Construction Company (P) Ltd., on 09.05.2018. Thereafter, the

portable plant equipments dispatch notes dated 26.05.2018 is

issued by the petitioner for the dispatch of NW106 portable plant

and it is to be delivered to the customer's site located at

Ponnivadi Village, Dharapuram, Tamil Nadu from the petitioner's

plant at Alwar.

4. The E-Way Bill was generated by the petitioner for

the dispatch of the equipment under the dispatch notes

741012407482 for equipment NW106 Portable Plant. Thereafter,

the equipments were mounted and transported by M/s. Premier

Road Carriers Ltd., on 26.05.2018 vide vehicle number

RJ05GB5482. The said above equipment while in transit for their

delivery at the customer's site by transport vehicle was

intercepted at Palamaner Check-Post, Chittoor District, Andhra

Pradesh during its inter-state movement passing through

Respondent State of Andhra Pradesh.

5. The 5th respondent verified the documents of the

transporting vehicles and later the equipment documents, under

the impression that the vehicle on which the equipment was

mounted and is being transported being driven by a driver ought

to have also been registered under Motor Vehicles Act, 1988 and

accordingly, imposed life tax/penalty on the transporting vehicle

bearing no.RJ05GB5482 carrying NW106 portable plant with

challan No.1693342 for Rupees 13,80,600/-.

6. The case of the petitioner is that the 5th respondent

failed to see that the transporting vehicle/s document are in

order and yet has quoted the transport vehicle numbers in

issuing impugned challan. It is the further case of the petitioner

that tax was imposed not for the vehicle carrying the portable

plant equipment, but, for the said vehicle on which the

equipment was mounted and the tax of which has already been

paid by the owner M/s/ Premier Road Carriers Ltd. In such a

case, the question of tax does not arise while in transit of even

transporting the taxable motor vehicle by the manufacturer to the

show room or customer and has filed the writ petition challenging

the impugned challan dated 07.06.2018.

7. The respondent No.4 has filed a detailed counter

stating that the Assistant Motor Vehicles Inspector, Palamaner,

Chittoor District (AP) on 07.06.2018 at 10:30P.M., near

Palamaner has stopped and checked the heavy goods vehicle

RJ05 GB 5482 Prime Move & Un-Registered Construction

Equipment Vehicle while proceeding from Rajasthan to Erode and

noticed the following irregularities:

a. The Prime mover bearing Registration

Number RJ05 GB 5482 drawing the Un-registered

construction equipment vehicle (Mobile Portable

Plant 60NW220GPD) which is manufactured by

METSO India Private Limited, Alwar, Rajasthan.

b. The Mobile Portable Plant consists of

Ch.No.TDRO2061 and the vehicle is plying without

payment of tax to A.P.State.

c. The cost of the vehicle is

Rs.1,77,00,000/-(One Crore Seventy Seven Lakhs

only) as per the invoice No.RJ19000659, dated

23.05.2018 of METSO(I)Pvt. Limited which is

produced by the driver.

d. At the time of checking the driver of

the vehicle not produced either Temporary

Registration or Registration Certificate, Form 21,

22 and Insurance Certificate of the Mobile Portable

Plant.

8. Hence, the owner of the vehicle M/s. Ramalingam

Construction Company (P) Limited, Erode, Tamilnadu is liable to

pay the M.V. Tax as per the provisions of the schedule of the

APMVT Act, 1963 and Rules made thereunder. As the vehicle was

detained U/s207(1) of MV Act and 8 of APVT Act by the checking

officer and kept at APSRTC Depot, Palamaner for its safe custody

with an advice to the driver to watch and ward the vehicle in

seizure period and the checking officer is not responsible for any

loss and damages to the vehicle.

9. It is further stated in the counter affidavit that no

doubt as per sub-section (1) of section 10 of the APMVT Act,

1963, Nothing in this Act shall apply to a Motor vehicle registered

in the name of the owner or occupier of any agricultural land or

mine if such land is under his personal cultivation or if such

mine is being worked personally by him and such motor vehicle

is designed and used solely for carrying out agricultural or

mining operation on such land or mine or within a distance of

fifteen miles from the limits of such land or mine. But, in the

present case, the portable plant 60NW220 model is not

Registered by any of the Registering Authority and the same was

purchased by M/s. Ramalingam Construction Company (P)

Limited, Erode, Tamilnadu and found plying on the public roads

in Andhra Pradesh as such the exemption claimed by the

petitioner is not applicable.

10. The counter further stated that the portable plant is

a truck horse dawn semitrailer of tandem axle, Eight Wheeler,

sprung chassis construction equipment vehicle. As per section

2(39) of M.V. Act, 1988 "Semi Trailer" means a vehicle not

mechanically propelled (other than a trailer) which is intended to

be connected to a Motor Vehicle and which is so constructed that

a portion of it is superimposed on and a part of whose weight is

borne by that motor vehicle. On a semi trailer the said mobile

screening and crushing plant was builted. As per Rule 2(ca) of

CMV Rules 1989, above semi trailer comes under category of

Construction equipment vehicle. Further as per section 3 (2) of

APMVT Act, 1963, Levy of tax on motor vehicles in the case of

construction equipment vehicles including Road Rollers the rate

of tax shall be levied at the rates specified in the Forth Schedule.

Thus the Portable Plant 20NW106 drawn by the Prime Mover

RJ05 GB 5482 is liable for Registration as non transport vehicle

and quarterly tax is collectable on ULW basis.

11. It is further stated that the prime mover RJ05

GB5482 is a Registered vehicle and stand in the name of one Sri

Hukam Chand, of Gurgaon, Rajasthan State whereas the invoice

in respect of the semi-trailer NW220 portable plant stands in the

name of M/s. Ramalingam Construction Company (P) Limited,

Erode, Tamilnadu, which was not registered by any registering

authority and plying the vehicles with wrong combination and

further submits that the seizure of the vehicle and levying of the

tax on the portable plant by the checking officials is legal and as

per the law and rules in force.

12. The learned counsel for the respondents relied upon

a judgment of the Division Bench of this Hon'ble Court in Khader

Basha and others Vs. Regional Transport Officer, Chittoor

and others in W.P.No.173 of 2010 and batch, dated 28.09.2011,

wherein, whether a semi-trailer is a motor vehicle or not, the

Hon'ble Division Bench, relying upon a judgment in Bose

Ahraham (55 supra), held as follows:

" 114. In W.P.No.21442 of 2010 the owner is aggrieved by the proposal to levy life tax on a semi-trailer. The Counsel submits that semi-trailer is not a motor vehicle and it is always attached to a prime mover for carrying, in this case, a stone crusher. Therefore, it cannot be considered as a motor vehicle. "Semi-trailer" means a vehicle not mechanically propelled, which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is superimposed on and a part of whose weight is borne by that motor vehicle (Section 2(j)). It is certainly a vehicle and it gains propulsion externally by reason of being attached to a prime mover. When a chassis and a trailer are included within the definition of a motor vehicle, we are unable to accept the plea that a semi- trailer is not a motor vehicle.

115. At which stage of levy and collection of tax the question whether the vehicle is a motor vehicle or not should be decided? In Bose Abraham (55 supra), the Supreme Court ruled such a question has to be decided by the assessing authority in the course of the assessment under the Taxation Act. In doing so, the Rules in Chapter V of the Central Rules, various definitions in the MV Act and other Rules furnish sufficient guidance. In case of any doubt, it is still open to the assessing authority be it Regional Transport Authority

(RTA) or Transport Commissioner; to obtain the opinion of the manufacturers and experts in motor vehicle design. In this connection, the Circular Memo No.3943/E1/2010, dated 17.5.2010 issued by the Transport Commissioner clarifies that only chain mounted vehicles, which need not be registered, are not covered under the definition of motor vehicle and that all the other CEVS as defined under the Central Rules are required to be registered as non- transport vehicles on which life tax is to be levied. However, the trailers fitted with the equipment like rig or generator are liable to be registered as non-transport vehicles liable to pay quarterly tax on the basis of unladden weight. As per this Circular, all other vehicles are liable for life tax."

13. The Hon'ble Division Bench, further relied upon a

judgment in Bolani Ores Ltd. (47 Supra), wherein, the Court has

held as follows:

"116. The use to which a vehicle is kept in the State is also a relevant factor because,as held by the Supreme Court in Bolani Ores Ltd. (47 supra), even if vehicles are motor vehicles for the purpose of the MV Act, they cannot be taxed under the Taxation Act if they are specially adapted for use only in a factory or in any other enclosed premises. Mere exclusive use of a motor vehicle within a factory or enclosed premises would not by itself exclude such vehicles from the levy of tax. It is only when such vehicles are specially adapted and specially designed those vehicles go out of the purview of the Taxation Act. Generally even the vehicles which are of "off highway" capabilities, if they are fitted with rubber tyres or pneumatic tyres or rubber padded would be motor vehicles liable to tax. However, in case of any doubt like Rocket Boomers what we have held above with regard to the power of the RTA/ Transport Commissioner to determine the question would hold good."

14. It is further held in the judgment relied as follows:

"122. If any of the petitioners challenge the decision of the Taxing authority, it is always open to them to produce necessary material to show that the equipment they own either not a motor vehicle or even if it is a motor vehicle, it is specially adapted for being used in a factory or in an enclosed premises. Of course if any of the CEVS are designed for use solely in mining industry or for agricultural operations, they have to necessarily pay life tax and seek exemption under Section 10 of the Taxation Act. In those cases, the owners of vehicles which are designed and are being used solely in mining and agricultural operations are entitled for refund after obtaining exemption as admitted by the State.

123. After obtaining such exemption, it is always open to them to seek refund. In those cases, the owners of vehicles which are designed and are being used solely in agricultural and mining operations are entitled for refund before obtaining exemption is admitted by the State"

15. Further, the batch of writ petitions were disposed of

with a liberty to the petitioners to approach the jurisdictional

Regional Transport Authority for determination of the question

whether or not the Rocket Boomers used for tunnelling and

drilling works are motor vehicles. And on such application being

made, the RTA shall, if necessary, consult the manufacturers of

those vehicles or experts in the field of construction equipment

and determine the question as to whether the owners of those

vehicles are liable to pay life tax after getting their vehicles

registered under the MV Act.

16. The petitioner has filed a rejoinder to the said

counter filed by the respondents by stating that the judgment of

the Division Bench, relied upon by the respondents in

W.P.No.173 of 2010 and batch, dated 28.1.2011 has no

application in the present case on hand, as the portable crushing

plant can function only on erection and installation of the

equipment and in the process of its transportation cannot in any

manner be considered as a motor vehicle and further stated that

the action of the respondents in stopping, checking and issuing

the vehicle report is use of excess power as:

(a) Incidence of tax has not yet occurred

(b) M/s. Ramalingam Constructions Pvt. Ltd., yet not the

owner of the consignment which is in transit.

(c) The consignment is not a Motor Vehicle but a Good as

per Sale of Goods Act, 1932.

17. For proper appreciation of the case, this Court feels it

relevant to refer to Section 2(28) of the Motor Vehicles Act, 1988,

which reads as follows:

" Motor Vehicle or Vehicle means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted (hereto from an external or internal

source and included a chassis to which a body has not been attached and a trailed; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimeters."

18. On a perusal of the counter affidavit of the

respondents and the rejoinder filed by the petitioner, it appears

that the said portable crushing plant has not been

installed/erected at the customer's site and hence, the portable

crushing plant cannot be considered as a vehicle, according to

Section 2(28) of the Motor Vehicles Act, 1988. But, while it is

being transported to its destination, has been considered as

vehicle and got issued challan dated 07/06/2018 bearing

no.1693342 and 1693341, which is unjust and bad in law.

19. In view of the above facts and circumstances, these

writ petitions are allowed, by setting aside the impugned challan

dated 07/06/2018 bearing no.1693342 and 1693341 and the